New Disability Access Laws. A relatively obscure section of the recently enacted California law designed to curtail abusive "drive by" lawsuits under federal and state disabled access laws obligates commercial property owners to state, in leases executed on and after July 1, 2013, whether the property has been inspected by a Certified Access Specialist, and, if so, whether the property has or has not been determined to meet all applicable construction related accessibility standards. San Francisco has gone several steps further with a new ordinance that requires landlords entering into or amending leases for premises to be used as a public accommodation either (i) to bring public restrooms and ground floor entrances and exits into compliance with federal and state disability access laws, or (ii) to disclose to the tenant that the property may not currently meet all applicable construction related accessibility standards and inform the tenant that it may be legally and financially liable for failing to comply with disability access laws. The ordinance is effective for premises of 5,001 to 7,500 square feet on January 1, 2013, and for premises fewer than 5,001 square feet on June 1, 2013.
Restaurant Exclusive Does not Prohibit Winery Tasting Room. Freemark Abbey’s proposed Napa Valley tasting room operation was enjoined by a trial court as a violation of a restaurant tenant’s exclusive for operation of a restaurant, defined in its lease as “retail business purveying food and/or beverages for consumption on the Premises.” The Court of Appeal, applying its independent judgment, decided that “purvey” means “sell”, and therefore, giving away tastes of wine does not violate the exclusive. It is difficult to understand how the restriction against consuming beverages on the Premises is to be disregarded if the wine is given away instead of subject to a tasting fee, but, on the other hand, a tasting room is not a "restaurant." In any event, this case reflects a long line of California courts applying their own sense of what is “reasonable and fair” in commercial leases. Bottom line, if an exclusive is not carefully written and free from ambiguity, the results of a contest may be unpredictable.
SPEAKING ENGAGEMENTS: Byron was the principal speaker on Hot Topics and Trends in Commercial Leasing on October 26, 2012 at the 4th Annual Real Estate Symposium sponsored by the Santa Clara County Bar Association, and he presented on the same topic in Santa Rosa on April 2, 2013 at an MCLE seminar sponsored by the Sonoma County Bar Association. Another MCLE commercial leasing presentation is planned for October 2013 at the office of the Santa Clara County Bar Association.
